CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ DIRECT EFFECT OF INTERNATIONAL TREATY PROVISIONS IN THE EU LEGAL ORDER … within the Union acquis . The legal basis for the conclusion of international treaties by the Union derives from the founding treaties, thus it is unsurprising that international treaties are simultaneously subordinate to primary law and must not conflict with it. Nevertheless, the relationship between an act of secondary law and an international treaty poses challenges. The hierarchical precedence of an international treaty is particularly affected when a treaty provision is granted direct effect. Even if an international treaty holds precedence over a provision of secondary law, this precedence never extends to primary law, especially to general principles that encompass fundamental rights. 20 Granting direct effect provides a provision of an international treaty with a form of hierarchical precedence over a provision of secondary law. However, this discussion pertains specifically to the relationship between two provisions, not between the entire treaty and the entirety of the secondary legislation. Therefore, we can consider this as an affirmation of the principle that a normative instrument of lower legal force may not contradict a normative instrument of greater legal force. In the event of a conflict, it is the direct effect that affords precedence to the treaty provision, and the validity of the secondary act can be assessed in relation to the treaty provision in question. It can be considered settled case law of the Court of Justice that acts of the institutions cannot be reviewed in light of a rule derived from an international treaty unless that rule is binding and capable of creating rights that parties can directly invoke before the courts—that is, if it is given direct effect. 21 Here, we venture to offer a slight critique of the Court of Justice, particularly in its more recent case law. The Court has often stated in simplistic terms that an international treaty takes precedence over a secondary act, referring to judgments in which it has not ruled on the automatic primacy of the treaty. 22 By making such generalizations, the Court of Justice does not significantly contribute to clarifying the relationship between secondary law and an international treaty concluded by the Union. We therefore consider it necessary to proceed on the basis of what is already settled in the case law of the Court of Justice, that a treaty provision will prevail only if it has direct effect. Harmonious interpretation is another approach frequently invoked by the Court of Justice in its case law. The Court consistently emphasizes that secondary legislation should, as far as possible, be interpreted in conformity with the relevant international treaty. 23 As Graig and De Búrca note, while Union law should generally be interpreted in accordance with international treaties and international law, this approach is typically not applied when a treaty is invoked to challenge a provision of Union law. 24 Therefore, the notion of general priority cannot be sustained. The issue of granting direct effect to a provision of an international treaty remains highly relevant, despite the lack of clarity in academic literature. This is evident because its implications extend to the courts of member states and individuals who can invoke these provisions before both national courts and EU institutions, bodies, offices, and agencies. 20 Judgment of the Court of 3 September 2008., Kadi a Al Barakaat International Foundation/Rada a Komisia , C-402/05 P a C-415/05 P, EU:C:2008:461, para. 308. 21 Judgment of the Court of 24 October 1973, Schlüter v. Hauptzollamt Lörrach , C-9/73, EU:C:1973:110, para. 27. 22 Judgment of the Court of 10 January 2006, IATA and ELFAA , C-344/04, EU:C:2006:10, para. 35. 23 Judgment of the Court of 12 January 2006, Algemene Scheeps Agentuur Dordrecht , C-311/04, EU:C:2006:23, para. 25. 24 CRAIG, P., DE BÚRCA, G. EU law – text, cases, and materials. 4th ed. New York: Oxford University Press, 2008. p. 209.

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